The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-28

Nelsher will an officer de facto be enioined =
far as we can learn this question first carnx =. -
in the case of Tappan vs.. Gray, 9th Paige, 5o9p
The opinion in that case WIS rendered hv -. 8
learned Chancellor Walworth The action w s,.e
to enjoin an officer de facto, whose title wa. :;
dispute, from the exercise of the functions -
the Office, and the Court refused to issue the {
writ, saying that it was beyond the exercise "a
the jurisdiction of chancery, and that Il va.
against public policy to prevent one in an ofs.s
from performing the duties incident to that a.
fee. That case went to the Court of Errors IN
appeal, and was affirmed in the case Of the s.,n.
name in 7th Hill. $50. Probably the most elaN
crate discussion Of this question is to be found i
The People vs. Draper, 24th Barbour 265 a.
action of quo warranto to try title to Office In
cidental to that action there was injunction
prayed for to prevent the officers whose ttlas
we're in question from performing the duties -
the Offices. The Court asked the question:
Is the relief by injunction allowed in an act;on -
quo warranto by practice in any easel That thes
mitted on al hands. 80 am inclined to tb; M
that such relief has not been deemed consistent witt;
tho interest OF the State with public poll
as to Offices emanatng from the sovereign power: and
that hence it has been adopted in practice that
the public welfare has been deemed to require that an
actual incumbent Of Office should be forbidden n
perform the duties of it for the time being even
though his title to the Office doubtful that shs
public should not he deprived of the benefit Of Al
Office merely because it was uncertain whether thu
person in and ready to perform the duties of it were
Az
Stunning to act should be in controversy To RESTRAIN
the action of the incumbent to restrain all the func.
tons OF the Office for he being in even II wrongfuly
no one else enter until he is removed. and the
Governor, one, can; and it is not at all difficult
to see that in very many and most cases. the public
shd nd tn au un
the matter of personal right between rival claimants
should be determined
In the case from which have been reading.
the possession Of the Office was a mixed one
both parties claiming to be in possession and
endeavcrlng to perform the duties of the office
as is the case here This case is recognized a
authority, in the case of Beebe VS.. Robinson,
SO Ala D. 66. And with the courts permission
will read therefrom a few sentences:
For the organization by elections and appointments
to Office constitutional and legislative arrangements
have been made and prescribed such as tho
people have considered best and efectua for hs
prompt and efficient accomplishment of that essential
operation. The persons officers to whom they In.
trusted the conduct application and superintendent
of these arrangements and processes must be pre-.
sumed to act conscientiously and faithfully and the
organization should not be obstructed by the nterpo
ston of the courts least of all by courts ofchancey
To the same effect is the case Of the State "a
Wolfenden, "a North Carolina, 103 The case Of
the State va Durkee, IL Kans., 3l1, is instruct
| i've upon that question. In that case as here
| the Information was in quo warranto with Z
prayer for an injunction as an ancillary pro.
ceeding. and temporary injunction was granted
| by the court below against . number of persons
| who were occupying county Offices in county
| of that State. The Court in passing upon this
question says:
But as 70 those who were the officers dc facto Il d
difficult to tell from the allegations of said petition
Probably would be fair to infer from the allegations
of said petition that said defendants and the
claim to be said officers de jure.
| Which, by the way, is the situation here
This is our Interpretation of the petition With this
Interpretation the State the relation of the county
attorney clearly has no right to ask that the said
of the duties and the functions of their several Offices
pending this litigation. The interest of the public re-
dures that somebody should exercise the duties and
corning Them and one has better right to do 50
than the various officers de facto who claim TO be or
/ GERS de jure.
And similar question arose in the case Of Coch.
ran VS.. McCleary (22d Iowa. page 75.) In that
case the opinion was written by Judge Dillon,
and he holds the rule to be well settled that the
court Of chancery will not interfere before .
trial at law, in favor Of an officer de iure, and
against an illegal claimant by en-
the functions Of the Office Now, the
most that can be said Of the position occupied
by the relator in this is that he is the officer
de iure. If that be his true position, then Il
follows from this doctrine, enunciated BY Judge
Dillon, that q court of chancery will not inter
fere by injunction to prevent an intruder in pos
session from exercising the duties of the Office.
It is argued at some length by MIR. Brown that
the statute concerning the granting of injunc.
tons authorizes the court to grant the relief
which was granted by the court below in this
case. Probably the best way to answer that ar
| gument is to show upon authority that the posi-
ton is absolutely untenable That question
| arose in the case of Patterson Va Hubbs (65
North Carolinina D. 1907, which was an action to
enjon the defendant from performing the duties
of tax collector. The North Carolina statute ID
similar to ours. Indeed. the language is almost
identical in relation to the granting Of injunc.
- hat
question:
We are of opinion that Section 1879, concerning the
granting of injunctions does apply to the Of
the usurpation Of public Office, but is confined to
troversy and the act sought to be restrained would
produce injury to the alleged right Sf the R,aans y
controversy is the right to public Office to
prevent the exercise of the Office would produce gen.
eral Inconvenience. For instance: An injunction
man whom it. Is alleged holds the ose
the duties of his Office, would stop all judicial pro
ceedngs and the public would be made to suffer 81
this mode of contesting the right to the Office
And the same question arose in the case Of
Markle vs.. Wright, 18th Indiana 548. There
Wright filed his complaint, alleging that he was
duly elected treasurer of JASPER county, ano
that Markle was nsurping the Office and per
forming its duties and he asked an injunction
based upon che section of the statute, which hal
been read to the court by Mr.. Brown, concern
ing the granting of injunctions. The court, az
ter holding that Wright was lawfully elected
and entitled to the Office, and that Markle was
usurper of the Office, held that the statute con
corning the granting of injunctions did not en-
title Wright to an injunction. The court say
An express remedy is provided by way Of infoTsna
ton, that being county Office Perhaps there maj
BIO some other remedies but the above cited stasuo
the subject of nunctions and restraining oroer
cannot be construed to authorize the court or JUG
in vacation. to make an order by way Of injunct,o
requiring the incumbent Of Office. although Y.
, term has expired and his successor has been oug
. elected and qualified to transfer and deliver 10 a.
.. successor the appurtenances Of the Office.
{ So that upon principle and authority GU
statute does not give the court the right to issu
81 the restraining order which was issued IN tni
/ case The case of Markle VS.. Wright was cise'
5 with approval in the case of Beal vs.. Ray tltt'
Ind, 55Sl. and there as in the other case. 81
= / thonrh the nersnn claiming title to the ofhce